Long road home

After 25 years in journalism, telling the family story should have been easy for me. But this proved a sometimes awkward journey, calling into doubt an image projected amidst the rapid social ascent of my forebears in early 20th century Sydney. When my uncle Alec Shand, QC, passed away in July this year, an obituary in The Sydney Morning Herald noted that “for more than a century from the mid-1880s, A. B., J. W. and Alec Shand demolished witnesses, defeated prosecutors and dazzled juries".

There was no mention of John Shand (1825-1891) who had arrived in Sydney in 1853 and finished up a successful farmer and a police magistrate at Penrith Court. John had begun the family’s legal tradition on the other side of the bench, paving the way for the barristers that followed.

The family had also forgotten him. According to family lore, our Australian story had begun one generation after the pioneer John Shand, and it was his son, my great-grandfather Alexander Barclay (A. B.) Shand, KC (1865-1949), who was universally regarded as the patriarch. A. B. had begun life on his father’s farm, Wallgrove Estate, at Eastern Creek in outer western Sydney but had become a leading legal figure in NSW. He refused an invitation to become a Supreme Court judge, preferring the greater income of the barrister but served as a Royal Commissioner on industry inquiries.

A. B. and his wife Florence made a formidable couple in Sydney society of the early 1900s. He was a leading member of the Bar Council and a friend of senior politicians, while she was a tireless worker for the poor and infirm, sitting on the boards of various hospitals, schools and women’s auxiliaries. Her sudden death in October 1929 left a hole in A. B.’s life that would never be filled.

Alexander Barclay (A.B.) Shand, KC (1865-1949).
AFR

As small boys, my father John and his twin brother Alec were sent to spend afternoons at the Vaucluse residence of their widowed grandfather. The once dashing A. B. had become an immense and forbidding figure by the late 1930s. As he consumed vast quantities of food, the gruff old barrister would exhort the children to clear their plates before sending them off with the maid to swimming lessons at Parsley Bay. There was no time for small talk or family history around this dining room table. The Shands then, and through the generations, were looking to the future, not the past.

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Despite this insistence, I had managed to uncover a connection to a canal pirate in Cornwall that I was keen to adopt. But, on the whole, we thought of ourselves as English, from a Sydney family with Anglican roots. For reasons lost in time, A. B. had bestowed the middle name Wentworth on his son Jack Shand, QC, and it had been passed down through four generations of Shand men, all the way to my son Jack. It hinted at a pioneering colonial respectability.

William Charles Wentworth had crossed the Blue Mountains with Blaxland and Lawson and then became the colony’s greatest statesman. Back in the 1970s, a member of the Wentworth family challenged my father in public over the use of her family name. We were imposters, she declared bitterly. We were social climbers who had stolen the Wentworth name to get ahead. We dismissed her haughtily, but without a skerrick of supporting evidence.

Our identity as a family had been forged in the courtrooms of Sydney. A. B.’s son John (Jack) Wentworth Shand, QC, (1897-1959) had followed in his father’s footsteps, becoming the most famous barrister of his day. Jack’s son Alexander Barclay Shand, QC (1929-2011), had become the third generation to take silk at the NSW Bar. The SMH noted that Alec had resembled “his tall and handsome grandfather (his father was less prepossessing – ruddy and stout). But if he had A. B. Shand’s demeanour, Alec had his father’s tenacity. As Sir Garfield Barwick said of Jack – and it applied to his son – he had ‘the capacity of insinuation in tone that could annoy and bring a witness into antagonism.’ "

Beyond the storied legal history, a casual inquiry into the archives of the NSW Births, Deaths and Marriages would become a quest to understand how the Shand family had mislaid, or even discarded, the knowledge of its origins. It also led to an unlikely inheritance from the late 19th century. This was, quite literally, a road that ran back into our past.

Rudders Lane was a crumbling, potholed strip of tar that connected the Great Western Highway with a grim row of tumbledown shacks, a trotting track and some disused paddocks that had once been my great-great grandfather’s farm, Wallgrove Estate, at Eastern Creek. Housing estates had sprung up all around in neighbouring Rooty Hill and Minchinbury, but progress had bypassed Wallgrove. The M4 freeway framed the southern boundary with a view of Eastern Creek Raceway, and the M7 thundered along the western edge. The land in between was less developed than it had been in 1890. Remnants of the orchards and gardens of Chinese tenant farmers had long ago disappeared under the weeds and brambles.

When I first saw it in December 2010, however, big changes were afoot on Rudders Lane. A huddle of workmen’s sheds had recently appeared in the scrub, readying for the construction of the Huntingwood West Employment Precinct. In the early stages of this development, the lane had been closed by Blacktown City Council in 2007; all permits had been issued and a developer, Goodman, was already spruiking the warehouse and factory sites to prospective buyers.

There was just one problem. In 2008, it was found that the roadway had never been gazetted as a public road, although locals had used it for access since the 1860s. To tidy up this detail, the NSW government had compulsorily acquired the 8000 square metre strip in 2008. There had, however, been no payment of compensation to its legal owners. In 2011, more than a century after John Shand’s death, his descendants would reclaim his property rights – and a family history.

My father, retired psychiatrist Dr John Shand, bore his great-grandfather’s name, but had never heard of him. Barclay, his great-grandmother’s maiden name, had survived in his twin brother Alec’s middle name. Other branches of the family had also preserved the Barclay name, but no one quite knew why. The names of these pioneers were never spoken of in the family. Unfortunately, the weak link seemed to have been my grandfather Jack Shand.

A brilliant and unorthodox advocate, Jack’s legal exploits had held Sydney in thrall in the days before television. His entry in the Australian Dictionary of Biography noted that “his reputation as a courtroom tactician rested not only on his many victories, but also on his willingness to accept difficult and often seemingly impossible briefs". In 1954, he secured an acquittal for a glamorous model named Shirley Beiger who had shot her philandering boyfriend dead outside Chequers Night Club in Sydney’s Pitt Street.

For all his public acclaim, Jack Shand had played a minor role in the lives of his six children from two marriages. In 1939, Jack already had four children when he left his wife Enid (my grandmother) for another woman, Judy Westgarth, whom he had met at the Killara Tennis Club. They had another two children.

In 1959, Jack Shand was still appearing in high-profile cases even though dying from bowel cancer. His last, and possibly greatest, case came in a South Australian royal commission into the conviction of an indigenous man named Rupert Max Stuart, condemned to hang for the brutal murder of a nine-year-old girl.

Although he knew he was dying, Jack Shand never got around to sorting out his affairs. When he passed away in October 1959, he left no will, nor any final instructions. Jack’s second wife Judy inherited the family home, Wentworth Cottage in St Ives, but there was precious little else. The rest had been frittered away through gambling and the high life.

For his inheritance, my father received only the briefcase that Jack had carried into court through many of his great legal battles. They shared the name John Wentworth Shand, so with the monogram ‘JWS’, the case could hardly go to anyone else. Alec got the old man’s law books and a wonderful head start in the law from the family name. They became successful despite their paltry inheritance.

Money had never been very important to Jack. On at least one occasion, A. B. had been forced to settle his son’s gambling debts with Sydney bookmakers while his son indulged what newspapers described as a “zest for life" and “his frolicsome ways". In Jack’s life of fast cars and slow horses, there was no time to explain the family origins, notably his grandparents’. Until we found their grave in December 2010 in the old Presbyterian section of Sydney’s Rookwood cemetery, John Shand and his wife, Mary Barclay, had slipped steadily into anonymity.

The granite headstone was lying flat on the ground, having fallen from its plinth. By the headstone, there were half-buried shards of a broken bottle, perhaps one used for floral offerings. There was a date, 1942, on its base, suggesting it had been a long time since anyone had visited. John had died in September 1891, aged 66. Mary had lived on until 1911, when she died at 82. No other family members had been buried there.

Sitting by the grave in the sun with my parents and 14-year old daughter, we reconnected a thread stretching back hundreds of years. While searching Google references, I had come across a notice in the NSW Government Gazette. In January 2008, then state minister for planning Frank Sartor had signed off on the compulsory acquisition of the “residue" of a parcel of land situated in the Blacktown area. The land “was said to be in the ownership of John Shand and Alexander Barclay Shand".

It turned out to be a sliver of my great-great grandfather’s estate. Authorities had apparently made only minimal effort to inform us of the impending acquisition. My 14-year old daughter Noliwe, whose mother is Zimbabwean, saw this chain of events through her African heritage. “Today we found the ancestors . . . to thank us they have given us a gift."

The lawyer representing the NSW Department of Planning did not share our sense of nostalgia. Under NSW law, possession or occupation of a parcel of land was sufficient evidence of ownership, she announced drily. Therefore, Blacktown City Council was the rightful owner and had been paid a six-figure sum by the state government in compensation. And there the story ended, she said.

The principle of indefeasibility (a state guarantee of ownership) applies only to Torrens title. The Torrens system, under which land title is recorded with a volume and folio number, was only just beginning in 1866 when John Shand bought Wallgrove. Many landholders didn’t bother to convert their Old System titles to Torrens. Our claim to Rudders Lane seemed to be sunk until I discovered that the National Library held a poster advertising an 1890 auction sale of the Wallgrove land.

Amid the fancy fonts and filigree designs was written in bold capitals: Torrens Title. The map also showed Rudders Lane, and the rest of the road network did not fall within the boundaries of the blocks being sold. They would remain on the certificate of title, even after the Shands were long gone. Rudders Lane had seemingly been in limbo for decades, used by everyone and seemingly owned by no one, not even the state of NSW.

To John Shand, the lane was just a stock route off the highway that swung westward across the creek to the family homestead. John had planned the subdivision with thoroughfares that spoke to the spirit of the age. As the colonies moved towards Federation in 1901, 20-metre wide grand boulevards such as Centennial, Federal and Union roads would be created with names that spoke of nationhood. The lane was not even worth a name back then.

John Shand was a migrant success story. He arrived in Sydney in November 1853 with his wife, Mary, and two-year-old daughter, Jane, aboard a cargo ship called the Hope. Once a servant, he had been working as the toll collector on the River Spey at Fochabers in northern Scotland. The discovery of gold in NSW in 1851 had created a labour shortage and artisans such as John were in high demand as great civic works got under way. Scottish quarrymen and masons worked the yellow block sandstone of Pyrmont from which much of Sydney’s original cityscape was hewn. Later, John won a contract to build the stone pier at Ulladulla on the south coast and used the proceeds to buy Wallgrove in 1866.

By 1890, he and his wife Mary Barclay had raised five children, built a school, a tannery and a dairy. At 65, he was a civic figure in the Penrith area, a police magistrate, a deacon in the Presbyterian Church and a vice-president of the local branch of the Free Trade Party. With the sale of the farm, John was contemplating retirement in a new three-storey terrace house in Pitt Street, Redfern. The sale poster boasted of “superior farms of various sizes" and a tannery for sale at auction on the grounds on March 1, 1890. With Sydney’s population pushing westward, Shand saw Wallgrove becoming a significant food bowl with orchards, vineyards, nurseries and market gardens.

The NSW land boom of the 1880s, however, was about to end. As Australia headed into the depression of the 1890s, Sydney property values fell 20 per cent over the next two years. The auction was a flop, with less than 100 acres (40 hectares) sold. John’s comfortable retirement in Redfern was short-lived. A year later, he died suddenly of pneumonia and pleurisy. The balance of the estate, 317 acres, was valued at only £1587. By comparison, the five stone cottages he owned overlooking Jones Bay in Pyrmont, plus a vacant block of reclaimed land, were estimated to be worth £6355.

Over the next three decades, the family gradually sold off all the blocks along Rudders Lane. Each was sold with a guaranteed right of way allowing free use of the lane. The last 20-hectare parcel, the former Wallgrove homestead, was sold in 1920. It was described as “the residue" of the title, overlooking the fact that the 8000-square metre strip of road still belonged to the Shands.

A dozen owners had a guaranteed right of way to their farm gates, so it’s arguable that Rudders Lane had little economic value. However, when the NSW government later bought all the surrounding land, the value of Rudders Lane was renewed. The plan had been to turn the land into parkland or small market gardens, but it was later sold for commercial use.

It’s now a year since this paper chase began and, since I first saw it, the old road has been transformed. It’s been dramatically widened, and kerbed and guttered for the first time. Rows of new factory sites and warehouses await tenants. Meanwhile, the state government has conceded that the family title to Rudders Lane has endured, although we still await formal confirmation and the battle may not be over. I was recently advised by the Department of Lands that no compensation would be paid before the question of unpaid council rates on Rudders Lane was addressed.

A determined litigant with money to burn could argue that the people of NSW had enjoyed toll-free use of the family road for decades, so any rates owing should rightfully be offset against that figure. Just how to value decades of traffic is more problematic. Old John Shand knew something of this having collected the ‘pontage’ on the bridge back in Fochabers.

In 1852, the price had been set at one shilling per horse, “drawing any coach, chaise, or other such carriage, with 4 wheels". At that rate, the bill for the use of Rudders Lane might be impressive but the cost of pressing the case prohibitive. And after all, this exercise was first and foremost about re-establishing connection with the pioneers of our family.

The supreme irony would be if we ended up owing money on the rates to the NSW government. It would be nice if there was enough left over after we paid them to at least restore the final resting place of John Shand and Mary Barclay. Yet I’m not holding my breath. In the meantime, in the interests of accuracy, I should add that in three years of research, I found no documented link between the Shands and the Wentworths. It’s but a small social misdemeanour. As John Shand’s journey showed, a hard-working migrant could become anything or anyone he dreamed of in the early days of Australia. So I’ll be keeping the name no matter what.